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IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - x BRUCE EDWARD BRENDLIN, Petitioner v. CALIFORNIA. : : : : No. 06-8120

- - - - - - - - - - - - - - - - - x Washington, D.C. Monday, April 23, 2007

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:03 a.m. APPEARANCES: ELIZABETH M. CAMPBELL, ESQ., Sacramento, Cal; on behalf of the Petitioner. CLIFFORD E. ZALL, ESQ., Deputy Attorney General, Sacramento, Cal; on behalf of the Respondent.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF

C O N T E N T S PAGE

ELIZABETH M. CAMPBELL, ESQ. On behalf of the Petitioner ORAL ARGUMENT OF CLIFFORD E. ZALL, ESQ. On behalf of the Respondent REBUTTAL ARGUMENT OF ELIZABETH M. CAMPBELL, ESQ. On behalf of the Petitioner 53 28 3

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P R O C E E D I N G S (11:03 a.m.) CHIEF JUSTICE ROBERTS: We'll hear argument

next in 06-8120, Brendlin versus California. Ms. Campbell. ORAL ARGUMENT OF ELIZABETH M. CAMPBELL, ESQ. ON BEHALF OF THE PETITIONER MS. CAMPBELL: pleast the Court: When an officer makes a traffic stop, activates his flashing lights, he seizes not only the driver of the car but also the car and every person and everything in that car. This unremarkable conclusion is Mr. Chief Justice, and may it

what Petitioner asks this Court to rule on, rule today. This simple rule is not only firmly rooted in this Court's precedence, it also protects police officers and the liberty interests of everyone traveling on a public State highway. CHIEF JUSTICE ROBERTS: apply in a taxicab, right? Well, it wouldn't

I mean, the cab is driving If I'm a

erratically, the officer pulls it over.

passenger in the cab, I think I can get out and catch another cab, right? MS. CAMPBELL: Whether or not you can get

out and catch another cab is sort of a separate issue, 3

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but at the moment that the car comes to a stop you've been stopped by a Government means intentionally applied, and I believe you are seized at that point. After that it may become a factual question with the totality of the circumstances and it may be significantly different from that, from the question we face in a case like this where it's a passenger in a private car. JUSTICE ALITO: bus was pulled over? MS. CAMPBELL: JUSTICE ALITO: seized? MS. CAMPBELL: Once again, a forward motion If a bus -Everybody on the bus is And would that apply if a

stopped by government means intentionally applied is a seizure under this Court's holding in Brower. CHIEF JUSTICE ROBERTS: But you would have

no reason if you were a passenger on a bus in the normal case to assume that the officer was concerned about you. Your view would not be that they are stopping me, you'd think they're stopping the bus because the driver ran a red light or whatever. MS. CAMPBELL: With all due respect, I

believe at that point what you believe is not necessarily the dispositive issue. 4

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issue is that your freedom of movement has been curtailed by government action. JUSTICE SOUTER: Well, are you saying then

that in a case in which the bus is stopped, the car is stopped and so on, the role for the test about whether a reasonable person would regard himself as free to leave is a test to determine when the, when the seizure ends, as distinct from when the seizure begins? MS. CAMPBELL: JUSTICE SOUTER: that test. MS. CAMPBELL: Exactly, Your Honor. And I Exactly, Your Honor. There's no other role for

believe that's the rule we apply with respect to drivers. We don't normally formulate it that was

because usually there's a directive from the officer saying okay, you're free to leave, there's a clear point where the seizure ends. But -Yeah, but you're taking the

JUSTICE SOUTER:

position that whenever you are in a vehicle that is stopped, you are seized? MS. CAMPBELL: JUSTICE ALITO: Exactly. Yes, Your Honor.

In this case, is it correct As soon as the

to view this as -- to view it this way:

officer approached the car, as I understand it, he recognized the Defendant as a potential parole violator. 5

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MS. CAMPBELL: JUSTICE ALITO:

Yes. And there would be for at

reasonable suspicion then from that moment on,

least a brief detention of the individual to determine whether in fact there was a warrant for the individual. So all we're talking about, the only period of potential seizure that we have to worry about is up to the moment when the officer sees Mr. Brendlin. MS. CAMPBELL: In terms of determining when The -- there --

Mr. Brendlin was seized, yes. JUSTICE ALITO:

In other words, any seizure

after that point would be supported by reasonable suspicion? MS. CAMPBELL: Well, except in this case of

course, it would be fruit of the poisonous tree, since the State has continued -JUSTICE KENNEDY: Well, that's the question.

Do you concede that this arrest was lawful? MS. CAMPBELL: The arrest itself -- the

arrest itself is still a product of the exploitation. JUSTICE KENNEDY: arrest was lawful? Do you concede that the

The officer was obligated to arrest

this person, knowing what he did, was he not? MS. CAMPBELL: MS. CAMPBELL: Yes. Yes. 6

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JUSTICE KENNEDY:

Do you have any case in

which we exclude the evidence seized incident to an arrest when the arrest is lawful? MS. CAMPBELL: Well, Your Honor, I don't This is a

have a case that has these specifics in it. new -JUSTICE KENNEDY: and that's my concern.

I didn't think you did,

I assumed that this officer was

required to arrest the person, and we can have hypotheticals, he sees somebody wanted for multiple murders and so forth. But I'm just not aware of

authority which says that when the arrest is lawful and the search is incident to that arrest, that the evidence is excluded. What's your best -- what's your closest

case you can give me on that? MS. CAMPBELL: Well actually, I would turn

to the cases that talk about searches incident to arrest and also, go back to the rationale for the intended -JUSTICE KENNEDY: MS. CAMPBELL: Thornton and -JUSTICE KENNEDY: with immediately. Thornton, I'm not familiar Can I have one please?

Well actually, let's look at

I'll look it up. Thornton and Knowles are two

MS. CAMPBELL:

cases that this Court has decided relatively recently 7

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where you talk about the rationale for searches incident to arrest. They're not cases that I would have

considered to be directly on point for the seizure issue in this case, but in Knowles the Court held that you can't search a car incident to arrest on a minor traffic stop because -JUSTICE KENNEDY: No, no. This was the

search of a person incident to an arrest, and I really jumped a little bit ahead of the questions that Justice Alito was proposing. There may have been a moment in

which the officer did not have the authority to act and he did, but it seems to me that once he has this knowledge, there is now an intervening cause and the arrest is proper, and the search as well. MS. CAMPBELL: issues. If I can divide this into two

First we have the issue of the arrest itself,

and I am aware of no mechanism by which Mr. Brendlin would be entitled to suppress the arrest itself, to not be arrested on the parole warrant, or to get out of jail free, so to speak. That is a separate issue, however,

than discussing whether or not the evidence that comes out of this auto search which is a direct product of the illegal stop should be admissible. JUSTICE SCALIA: And --

Well, it's a direct product

of the arrest, and if the arrest is legal, then it seems 8

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to me the search incident to the arrest is legal.

And

are you acknowledging that the arrest is legal, that whatever the exclusionary rule does, it does not require you -- when you've engaged in an unlawful seizure and you find an ax murderer sitting there in the car, you don't have to say sorry, I shouldn't have stopped the car. You can arrest the person, right? MS. CAMPBELL: JUSTICE SCALIA: And -So the arrest is legal. If

the arrest is legal, then the search incident to it must be legal. MS. CAMPBELL: Well, I think we have to

look, as I said, at the purpose -- the rationales for allowing a search incident to arrest are the need to disarm the suspect or take him into custody, and the need to preserve evidence for trial. In this specific I can't imagine

case he's arrested on a parole warrant.

what evidence in that car would be needed to be preserved in order to proceed on the parole warrant. JUSTICE KENNEDY: What authority do you have

that the operation of the exclusionary rule depends on the offense for which he was arrested? MS. CAMPBELL: Well, the search incident to

an arrest is an exception to -- to the exclusionary rule. 9

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JUSTICE KENNEDY:

Do you have any authority

for the proposition you just offered? MS. CAMPBELL: The proposition -The search incident to an

JUSTICE KENNEDY:

arrest leads to an exclusion in one case and not in another case, depending on the charge on which he was arrested? MS. CAMPBELL: Well, if what we are talking

about is whether or not the exclusionary rule should apply, we look to the purposes of the exclusionary rule which is to deter unlawful police conduct. If we allow

officers to make a stop on a hunch that someone has a, has a, has a warrant or whatever, we have essentially reduced the deterrent effect of the exclusionary rule as it applies to traffic stops, as it has historically applied to traffic stops. This is, this is not a new proposition that if you stop a car and -- if you saw something in plain view after an illegal stop, it wouldn't be -- it would still be excluded. JUSTICE SOUTER: Well, but why -- why

doesn't plain view kick in just as readily, once it is conceded as it has to be, that at the point that he was making the arrest, the officer was acting lawfully? And

if he was acting lawfully when he made the arrest, why 10
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doesn't he get the benefit of the plain view doctrine to the extent that he saw any evidence before him at that point? And I take it the plain view exception would at least cover the, I forget what it was, but the materials that were in the, in the passenger well of the passenger car, that -- that were known to be used as a source of, of ingredients for making methamphetamine? MS. CAMPBELL: misunderstood me. Well, I believe you

I wouldn't say that the plain view If the

doctrine would allow admission of that evidence.

stop is illegal then anything the officer seized -JUSTICE SOUTER: No, I realize. But we've

got -- we've got a choice here, I mean, I think Justice Kennedy's questions brought this out. We've got a

choice here of two ways to look at the State action at the moment of -- of the arrest. One way to look at it

would be to say it was a product of an unlawful stop. Another way to look at it would be to say it was an act of executing a validly issued warrant. And you concede

that they at least could lawfully have executed the arrest, they didn't have the arrest warrant but there was an arrest warrant issued for them and they could lawfully execute that warrant and arrest him at that point. 11
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Let's assume that those are our two choices. On choice number one the State, the police officer, is acting someplace where he shouldn't have been. On

choice number two, the parole violator, your client, is in a place where he shouldn't have been because he should have been arrested and he should have been back behind bars at that point. If we have a choice between those two ways of looking at the case, why don't we for any purpose, give the casting vote to the lawfulness of the arrest, to the warrant which was issued by a neutral and detached magistrate at some point? And if we do that,

then why isn't not only a search incident to an arrest, but the seizure of materials which were in plain view at the moment of that arrest, subject to a -- an admissibility rule? MS. CAMPBELL: slight correction. Well, first, Your Honor, a

I don't believe that there is any

evidence that this was an issue issued by an detached magistrate because what we call in California a Powell warrant under California Penal Code Section 3000(v)(a) -JUSTICE SOUTER: Okay. But it was, it was a

warrant that was lawful for Fourth Amendment purposes, is that conceded? 12
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MS. CAMPBELL: JUSTICE SOUTER: MS. CAMPBELL:

Yes.

Yes.

Okay. Issued by the Board of Prison

JUSTICE SOUTER: MS. CAMPBELL:

All right. But in terms of why we don't

do this, it's the reason we exclude evidence in general when it's unlawfull seized, when it is the direct result of a -- of a stop that is illegal from its inception. JUSTICE SOUTER: Well, all right, but you're

simply saying we give, we put the greatest emphasis on act A, stopping the car rather than act B, lawfully arresting, regardless of the legality of stopping the car. MS. CAMPBELL: a test for this. Well -- well actually we have

It's the Brown test; it's the Wong sun The test is if

test, and the people have the burden.

the, even there is attenuation, which I -- which is what the people are arguing, the warrant in this case is, that's not the end of the inquiry. We also look at the

flagrancy of the officer's misconduct, and we look at the temporal proximity to the initial illegality. And

in this case that attenuating circumstance is simply not -JUSTICE SOUTER: 13
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have in any of the cases -- I, frankly I don't recall. I remember Brown but I don't think there was anything in Brown comparable to the lawful authority to arrest independent of the stop. this case unusual. And -- and that's what makes

And -- and if we emphasize the

lawfulness of the arrest, quite independent of the circumstances of the stop, and we also bear in mind that the point of the exclusionary rule is -- is to deter police conduct, and you've got another priority here, the driver, who can invoke the exclusionary rule and deter police misconduct. I don't see where the interest would lie in, or where the justification would lie, in our saying we've got to put, as it were all the eggs in the basket of the unlawful stop, as opposed to the basket of the lawful arrest. MS. CAMPBELL: Well, Your Honor, I think,

actually I'm not sure that the driver in this case is going to have a remedy. If we look at the steps in this

case, first we have this officer who makes an illegal stop. He continues that detention in order to run

warrant checks on both parties; he finds probable cause to arrest Mr. Brendlin; he searches the car incident to the arrest, even though the Belton rationale search incident to arrest perhaps is a bit shaky in the case, 14
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because Mr. Brendlin is in the back of the car, and it's a parole warrant. But at that point the officer also

searches the driver, and if the evidence is, or if the taint is attenuated, as to Mr. Brendlin, and this is a lawful search incident to his arrest, I don't really understand how the driver is going to have a remedy as well. And in fact -JUSTICE KENNEDY: Well, do we have an -- an

argument that something was seized from the driver that should not have been seized from his person? MS. CAMPBELL: The driver is not a party to

the appeal, but she was convicted, and -- and -- and -JUSTICE KENNEDY: not before us. MS. CAMPBELL: No, it's not. We're talking about Well, but I mean, that's

JUSTICE KENNEDY:

evidence seized from the defendant. MS. CAMPBELL: No, Your Honor. I was

responding to the question doesn't the driver have a remedy? You know, isn't that enough to provide But if we allow a warrant by one person of

deterrence?

the car to attenuate the search, search of the car, then as I read this Court's precedents, the search is attenuated, the taint is -JUSTICE BREYER: 15
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Court as far as I could tell was thinking that it turns, if you stop somebody, you stop somebody, if you make him think he isn't free to go. So you seem to me to give a lot of cases where he would feel free to go, and you're saying still that that's a stop. Well, I mean, suppose the policeman

comes along and he sees three people in a car and there is Jack the Ripper driving. stopping the car. So he says okay, I'm

Now he says the other three people,

I'm not interested in you; my pal and partner here is in a second squad car; he will take you wherever you want to go. Have they been stopped? MS. CAMPBELL: initial seizure? JUSTICE BREYER: MS. CAMPBELL: yes. JUSTICE BREYER: Okay. Well, I don't think At No. The initial stop of the car, Have they been stopped by the

you're going to find authority for that in the law. least not in this Court. it is. Maybe you are.

I mean, I'd like to know what I think that would be very

interesting. MS. CAMPBELL: decision -JUSTICE BREYER: 16
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Well, I think the Brower

Brower --

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MS. CAMPBELL:

The Brower opinion has a very

JUSTICE BREYER:

What, what were the facts

MS. CAMPBELL: roadblock -JUSTICE BREYER: MS. CAMPBELL:

Well, in Brower there was a

There was a roadblock. The car crashed into it. But

the, the crucial question, the crucial issue was was means intentionally applied by the Government. JUSTICE SCALIA: What if the car -- you The same

know, the car doesn't come to a complete stop. facts that Justice Breyer just gave you. along at, you know, a foot a minute.

It's creeping

And then he says

to these other people, you can jump out and go wherever you like, or you know, or go back to, to my partner's car. right? MS. CAMPBELL: I think then we'd have a Then they wouldn't have been stopped; is that

totality of the circumstances test and whether someone feels free to leave and jump out of a moving car. -- I -JUSTICE SCALIA: So you're putting all the But I

eggs into the basket that the, the car came to a complete stop and therefore they have been seized. 17
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what is crucial for the seizure is the elimination on motion on the part of the car. MS. CAMPBELL: JUSTICE SCALIA: That's how -Any elimination of motion

in a vehicle in which you are the passenger constitutes, at the request of the authorities, constitutes a seizure? MS. CAMPBELL: intentionally implied, yes. Hodari -JUSTICE SCALIA: But not if you're still If it is by means I think that's, that's how

rolling a little bit, a foot a minute. (Laughter.) MS. CAMPBELL: Well, then it would be

totality of the circumstances test. JUSTICE SOUTER: It seems to me that you're,

you're blending two tests together, and tell me if I'm wrong. One test is there is no question that if the

police get control over people, those people are not free to go. MS. CAMPBELL: JUSTICE SOUTER: cases. Yes. And those are the motion

The most extreme example being the -- the Hodari D, did they -- you know, they were

roadblock.

trying to catch him but did they actually get to the 18
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point of a seizure for Fourth Amendment purposes? Then you got another category of cases in which there is no question that someone is stopped, that a police officer can exercise control, and that control if so exercised is certainly going to be seizure for Fourth Amendment purposes. But we don't know whether

the officer really is exercising control, so we ask the question would a reasonable person in the position of the individual stopped have believed that he was free to go? Aren't those two quite distinct tests? first test assumes the answer to the question in the second test. The second test assumes the answer to the The

first test, i.e., they're stopped, subject to control. Aren't they two independent tests? MS. CAMPBELL: I agree with you that they

are two independent tests, and as I went through this Court's precedents I frankly could not find a single case in which a person had been in motion and stopped and came to a stop, the physical stopping of motion, in which this Court did not find that a seizure had occurred. JUSTICE SOUTER: in shorthand? Okay. So you were engaging

You, you accept the analytical

distinction but you say look, in the real world once you 19
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stop, we -- we know how the person would have felt? MS. CAMPBELL: JUSTICE SOUTER: have felt. MS. CAMPBELL: I think that what we have Well -A reasonable person would

here, is -- as I said it's really the way we look at it with drivers as well. There is a bright line. The car

comes to a stop as a result of this display of authority, you are seized. From that point on when you

would, when a reasonable person would feel -JUSTICE SOUTER: No, but aren't -- you are

saying, I thought by agreeing with you what you were saying was once the car is stopped, a reasonable person under those circumstances would not have felt free to leave. MS. CAMPBELL: JUSTICE SOUTER: MS. CAMPBELL: I think that's true. Okay. I think a reasonable person

would not feel free to leave. JUSTICE ALITO: What if the officer went,

before even approaching the car got on the loudspeaker and said: "Driver remain in the car; passenger, you're

free to go"? MS. CAMPBELL: I think under the totality of

the circumstances any court would have a hard time 20
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saying the passenger is not free to leave then, unless there is some other intervening, some other factor. CHIEF JUSTICE ROBERTS: But you would state

he is still seized because the car is stopped. MS. CAMPBELL: absolutely. JUSTICE SOUTER: Well, then you're -- you're He is seized by the stop,

blending the two tests together again. MS. CAMPBELL: JUSTICE SOUTER: Well, the two different -You have either got to

accept their analytical distinction or not. MS. CAMPBELL: distinction, Your Honor. I do accept their analytical I think it's just -- it's

actually two different fact, two different points in time. There's the, there's the seizure that occurs when

the car stops; and then there is the continuing seizure during the course of the traffic stop which for the driver has a fairly clear ending point; for a passenger it's going to depend on the facts. JUSTICE ALITO: What's the difference

between that situation where the police officer says on the loudspeaker passenger remain, driver you're free to go, and the example that the State has in their brief, in which a car is stopped and as a result of the way it's stopped on a narrow road, the other cars behind 21
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that car are for some other period of time prevented from going forward? two situations? MS. CAMPBELL: That difference is actually Brower addresses that What's the difference between those

addressed directly in Brower. exact hypothetical.

It says a passerby who is There you have

inconvenienced by another stop.

Government, a Government-caused termination of movement but it's, but there is no intentionally, means intentionally applied. JUSTICE BREYER: So what it says here,

getting out their quote from it, is it says it does not occur whenever there is a governmentally caused termination in individual's freedom of movement, nor even where there is a governmentally caused and governmentally desired termination of an individual's freedom of movement. That only when there is a

termination of freedom of movement through means intentionally applied. Now, the only way I can -- I mean I say the difference between desired is that they didn't want to stop him. They are not interested in stopping him. Our desire is to

That's not our desire to stop him. stop the driver.

So if you don't have the desire and if there 22
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is no real restriction of any significance, is there a stop? I mean I would say Brower, they cited on their

side, for that language. MS. CAMPBELL: Your Honor, where you're

looking at -- we have to look at the objectively observable facts, which in this case are the flashing lights. We don't -- I mean the passenger has no

particular way of knowing what the officer's intent is, which I think is why this Court has consistently held that the officer's object intent in -- in -- is irrelevant to the equation. JUSTICE BREYER: also have to have two things. intentionally want to stop him. his movement is restricted. are true, then no stop. Well, the passenger, you One they don't Two, he doesn't think

Where both of those things

That's why the people who, say,

are on the railroad car and they stop the whole train, that the railroad says don't worry, not an inconvenience: We'll have another train for new 10 or

15 minutes; just get out, except for car one where there is Jack the Ripper -- you know, those other people are not stopped. Now that's their argument. response? MS. CAMPBELL: Well, my response is the same 23
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as it has been.

The passenger is certainly stopped when We discuss in our brief that

the car comes to a halt.

there are reasons why a passenger could, why the car could be stopped, as far as the passenger knows, and particularly in this case where we have -whereas it

was an unreasonable stop, there was no traffic violation, neither the passenger nor the driver has any reason to know why they are being stopped, and -CHIEF JUSTICE ROBERTS: a difference? Well, does that make

Let's say, you know, the car drives The

through a red light and the police lights come on. passenger surmises that it's because they ran a red light. So that's a different case?

You would say it's

not seized if he reasonably, objectively, reasonably assumes it's because of what the driver did. MS. CAMPBELL: No, Your Honor. I would

still say that the passenger is seized when the car comes to a stop. CHIEF JUSTICE ROBERTS: pointing out that they didn't know? So then why are we It makes no

difference under your view of the case. MS. CAMPBELL: Well, I don't think it makes I was responding to

a difference one way or the other.

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flashing lights that it means the driver -- I don't think that that's a proper inquiry to determine whether or not -CHIEF JUSTICE ROBERTS: Well then, if all

that matters is the physical stop, what do you do about the cases that were talked about earlier where the other cars have to stop because of the way -- that's a physical stop and yet our cases indicate you're not seized in those situations. MS. CAMPBELL: That's a physical stop, but

it's not -- it's not the -- the means intentionally applied portion of the test doesn't work or it doesn't satisfy it. JUSTICE ALITO: Well, how do you explain the

justification for stopping if there is the seizure, for stopping the innocent passenger because the driver has committed a traffic violation? If that's a seizure of

the passenger, then it's a seizure without reasonable suspicion of probable cause, right? MS. CAMPBELL: No. I would say that that's That's the risk --

a reasonable, a reasonable stop.

when you get into the car as a passenger, you take a risk that you may be subject to a reasonable search or reasonable detention. But the Fourth Amendment doesn't

provide any protection for anyone against reasonable 25
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detentions and that would be a reasonable detention. Was there a question? JUSTICE SCALIA: airport? What about a shutdown of an

You know, there is word that somebody has been

seen walking in with a bag of explosives or it looks like a bag of explosives, so they stop all planes on the tarmac, shut down all exits to the airport until they can ascertain what this bag is. Everybody in the

airport and everybody in those planes has been seized for Fourth Amendment purposes? MS. CAMPBELL: No, Your Honor. Some of

those people in the airport would be in the same position as the passengers in Bostick and Drayton, where they weren't going anywhere in the first place, and -JUSTICE SCALIA: Okay, just the people who They had just arrived

were trying to leave the airport.

and they were going to go out to catch a cab and go home. They have been seized. MS. CAMPBELL: I would say some of those

people would be in the position of the passer-by, the passers-by identified in Brower. Possibly some of them

would be seized, but it sounds to me like it would be a reasonable seizure and wouldn't necessarily --I mean a reasonable seizure, there's no Fourth Amendment protection against a -26
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JUSTICE SCALIA:

Well, it turns out that

there wasn't a bag of explosives and that no reasonable person would have thought. This was a knitting bag and

some foolish cop thought it was a bag of explosives. That would have made it unreasonable. So everybody in

the airport who is on the way home has been seized and has a cause of action. MS. CAMPBELL: Given the extreme leeway

given in airports, if it's so bad that there wasn't reasonable suspicion to shut it down, I'd say that's probably a reasonable result for shutting down entire airports for no reason whatsoever. But under the fact

that you posited, it sounds like it would be exigent -sent circumstances or something else that would make that a reasonable suspicion. Going back to our, to the test that Petitioner asks this Court to adopt, the most important thing I can say about this test is not only does it reflect what I think is the real life expectation. It

also protects officer safety by providing a measure of predictability for both passengers and drivers and as well for officers. And I'd like to reserve the rest of my time. CHIEF JUSTICE ROBERTS: Mr. Zall. 27
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ORAL ARGUMENT OF CLIFFORD E. ZALL ON BEHALF OF RESPONDENT MR. ZALL: please the Court: I'd like to respond if I could to Justice Souter's point earlier. The State sees this as having Mr. Chief Justice and may it

two distinct components in a situation where a passenger is subject to a, in a vehicle that's subjected to a routine traffic stop. First, you have the stopping of In

the vehicle, the physical stopping of the vehicle. our view that does not result in a seizure of a passenger.

It's a show of authority much like Hodari D The driver

discussed, which is directed at the driver. is the operator of the vehicle.

When the driver submits

to that show of authority, under this Court's precedents the driver is seized. The passenger is not seized. Even, even when the reason

JUSTICE SCALIA:

the driver is stopped is that a police officer whose car was alongside, he looks over there and he sees that it is some notorious felon who is in the back seat, and the only reason he stops the car is so arrest that felon? You would still say that, that the show of authority is only directed at the driver and hence it is only the driver that's seized? MR. ZALL: Justice Scalia, the way I'd 28
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answer that question is to say yes at the outset, because the driver is in control of the vehicle. By

necessity, the show of authority to stop if it's done in a routine manner, as was done here, is directed at the driver. Therefore -JUSTICE SCALIA: That's the right answer. You have to say that. I

think you're being consistent. You have to say that. MR. ZALL:

Thank you. Well, consistent with that

JUSTICE SOUTER:

answer, consistent with that answer, what we're concerned with in these cases is not, in cases like this, is not literally the moment of the stop, but the moment of the stop plus one. And in cases like this

the -- I take it you concede the question is would the passenger, would a reasonable passenger in, in that situation feel free to leave. And in the absence of a

hypothetical like Justice Alito's in which the loudspeaker says, all I want is the driver, passenger is free to go, and so on, absent something like that, what is the argument that the, that a reasonable person in the passenger seat would feel free to open the door and traipse off? MR. ZALL: Justice Souter, I think the, the

pervasiveness and the commonplace nature of a routine 29
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traffic stop gives -JUSTICE SOUTER: Have you ever been stopped?

Have you ever been subject to a traffic stop? JUSTICE SCALIA: (Laughter.) MR. ZALL: Yes. Yes, I have. Okay. Tell the truth now.

JUSTICE SCALIA: (Laughter.) JUSTICE SOUTER: up.

Okay.

The heart rate went

The blood pressure went up. MR. ZALL:

But --

But I was the driver, I was the

driver. JUSTICE SOUTER: Don't you think that a

reasonable passenger at that point would assume that the officer is in control and that, in the absence of some affirmative indication that the passenger can go, that he's supposed to sit there until this thing gets over with? Isn't that the reasonable response of a

passenger? MR. ZALL: so. No, Justice Souter, I don't think

I think again, because the, the traffic stop is

such a common occurrence and in the overwhelming majority of cases involving a routine traffic stop, it's an investigatory stop of the driver. And I think it's

reasonable for the passenger and the driver to see it 30
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that way, I would submit that if I am a passenger in a car and I'm riding with somebody and they, and one patrol car signals for the driver to pull over, I think the natural reaction is the driver says, what did I do, and the passenger says, what did you do? think that's the natural reaction. JUSTICE GINSBURG: -JUSTICE SCALIA: Well, but the policeman The fact that the action I mean, I

usually tells the drive and anybody else in the car: Stay in the car. out of the car. of the car. Policemen don't like people jumping They don't know why they're jumping out

And I would certainly if I were a passenger

not feel free to immediately open the door and start walking away, and if I did I would expect the policeman to tell me: Get back in the car. Isn't that, isn't

that the normal procedure, to keep the occupants in the car until the policeman investigates? MR. ZALL: Well, I think, Justice Scalia, I

think if the officer did tell you to stay in the car -JUSTICE SCALIA: tell me. Well, even if he didn't I

I would have expected him to tell me.

wouldn't even open the door because I know he would tell me. I know that I'm not free to leave the car

immediately until he investigates the stop. 31
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MR. ZALL: agree with that.

Well, I, I'm not sure that I

CHIEF JUSTICE ROBERTS: suitcase in the back seat?

What if there's a

Just the driver, the

driver's pulled over, and then somebody comes walking down the sidewalk, the driver's friend, he opens the car door, takes the suitcase and starts walking away? Wouldn't the policeman say, put that back, because he thought he had seized not just the driver but everything in the car, too? MR. ZALL: Well, again, Mr. Chief Justice, I

think that if, if the officer -- our position is that if the officer does something to the passenger to indicate -CHIEF JUSTICE ROBERTS: the suitcase. I'm talking about

You wouldn't, you wouldn't reasonably

think someone could just take something out of the car that's been stopped by the officer and walk off with it, right? Everything, all the contents of the car, are

seized as well as the driver, right? MR. ZALL: I'm not sure that a passenger, I mean, a suitcase can't go

though, is like a suitcase.

anywhere unless somebody does something. JUSTICE KENNEDY: You're representing the

State of California and you want to establish the 32
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proposition that any time there is a traffic stop in the State of California or I guess anywhere in the United States all the passengers are free to immediately leave, absent some further countermanding officer -- order by the officer. proposition. I think that's a quite surprising Now, we don't have empirical studies and

so forth, but at some point the Court takes judicial notice and I think indications from the bench are we just don't think passengers, A, are or, B, should feel free to leave when there's a traffic stop. I just think

you have no social or empirical documentation for that position. MR. ZALL: Well, though it's not cited in

our brief, Justice Kennedy, we have talked with the California Highway Patrol who make over a million stops a year in California and they treat passengers as free to leave. JUSTICE BREYER: But I mean, the question -I understand

so I want to know how to decide this case. what your position is.

But I think the normal instinct

of everybody is not about boats, taxis, airports and all these other examples, but this case. And I, I would say

if you want to go on instinct I wouldn't think of getting out of a car when I'm the passenger and the policeman has stopped. But maybe I'm wrong. 33
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you asked a million policemen, how many instances did they tell you about where they stopped the car and all the passengers jumped out and walked away? one? Was there one. MR. ZALL: Well, I mean -- but I think that Was there

prudent behavior -- just because it's prudent to do something doesn't make it a seizure. JUSTICE SCALIA: police car. Right. I never pass a I never

I don't care how slow I'm going.

pass a police car.

I don't consider myself arrested

just because that's the prudent thing to do, and it may well be a similar situation when you're sitting in a car that's been stopped by a traffic policeman. MR. ZALL: that -JUSTICE GINSBURG: Mr. Zall, let's say we I mean, I think, I think again

have just an intelligent reasonable person reads the newspaper and says: Oh, they handed down a decision

today that said the police can order me to get out of the car, the police can order me to stay in the car. How could such a person feel free to leave knowing that it is the law that that person can be told, get out, or if he tries to get out, stay in? MR. ZALL: Well, Justice Ginsburg, I'd say

that, you know, in the Court's seizure jurisprudence 34
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there is this notion of a consensual encounter.

I think

when an officer approaches a citizen on the street there is always the apparent authority. The apparent The police

authority of the police is always present.

always have the factual upper hand, if you were, and at the traffic stop is no different. I mean -- and yet,

this Court has repeatedly said that when the police approach a citizen, ask for his identification, ask for his cooperation, even if the police follow him in a squad car, that that's a consensual encounter. JUSTICE BREYER: on the Santa Monica Freeway? MR. ZALL: I don't think so. I mean it would be pretty Does it matter if they're

JUSTICE BREYER: dangerous to get out. MR. ZALL: why you don't get out.

Well, but that would be a reason But it doesn't have anything I don't, I But that

necessarily to do with the police coercion. don't think -- most of us wouldn't get out.

doesn't make it a seizure, just like most of us would cooperate with the police when the police approach us on the street. But I don't think -- if anything, I think It's clearer that

the traffic stop is less ambiguous.

the police are not interested in me if I'm a passenger. JUSTICE STEVENS: 35
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Suppose after the stop the passenger in the back seat starts to get out and the officer says: car. Is he then seized? MR. ZALL: Yes. Yes, because now the police Stay in the

have directed action at him and in that situation a reasonable person -JUSTICE STEVENS: Doesn't it mean that the

authority to cause the person to stay in the car existed throughout the stop? MR. ZALL: The authority? Yes, but I mean,

I think the police always have some degree of authority over us in any encounter. JUSTICE STEVENS: Let me ask you this. On a

casual street in downtown, if they say, I'd like to stop and talk to you, you don't have to stop. authority to make them stop. There's no

But there is authority for

the passenger in the back seat of the car. MR. ZALL: Stevens. Well, it depends, Justice I mean, I

I think, is there legal authority?

think police always have the factual authority and I think that's the way the reasonable person looks at things. I don't think the reasonable person -JUSTICE STEVENS: Is there a difference

between legal authority and factual authority? MR. ZALL: I don't think in this context 36
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there is.

I mean, certainly in -JUSTICE STEVENS: If there's no difference

then there's legal authority. MR. ZALL: I'm sorry, Justice Stevens? If there's no difference

JUSTICE STEVENS:

then there's legal authority, which would mean the person is subject, is in custody of the officer. MR. ZALL: No, I don't think so, any more so

than Mr. Drayton was in the Drayton case, where his compatriot was arrested and the police continued to engage him, and this Court found that that was a consensual -JUSTICE BREYER: think it's quite interesting. How are we supposed to -- I How do you suggest we

decide this/ I don't mean the result, but I'll go, I'll say yes, you've done your survey of the policemen, a million policemen think they're not restricting the movement of the passenger. Very few passengers jump out

of the car, but that may be because they're worried about being run over. So you say, well, in fact they're

restricted, but they don't think they're being restricted by the police, or do they? no idea, at least I have no idea. And here we have

I really don't know

what the majority think and yet it would seem totally relevant. How would we find out? 37
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MR. ZALL:

Well, Justice Breyer, I mean, I

think that in this Court's -- to be consistent with this Court's consensual encounter jurisprudence, with Rodriguez, with Royer, with Drayton, with Bostick -JUSTICE STEVENS: But those are encounters

in an airport where there are pedestrians; there's no authority to make the person stay, where here I think you've conceded that there is legal authority to require the person to stay where he was. MR. ZALL: Yes, yes, I do, Justice Stevens.

But I think the point is that if -JUSTICE STEVENS: And if it wasn't a seizure

what's the source of the legal authority? MR. ZALL: Well, again, I think, though, I don't

that it's a question of seizable versus seized.

think just because the police have some authority that that makes you seized. I mean, if the police see a

citizen jaywalking that person is not arrested because the police have the authority to make, to arrest him. So again I think, I think that the seizure occurs when the police exercise some authority over you. I just think the traffic stop is less ambiguous. It's

clear that the traffic stop is to deal with the driver, whereas in the street encounter -CHIEF JUSTICE ROBERTS: 38
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opposite is true, then it is a seizure even though they stop the car? MR. ZALL: Then, Mr. Chief Justice, I would

say that it's a seizure that at the outset, again per Justice Scalia's hypothetical, that the, the driver only is seized at the outset, but then once the police make it clear that their interest is with the passenger then the passenger would not feel free to leave, and then the passenger would be seized. CHIEF JUSTICE ROBERTS: Even if they make

that, even if they make that interest clear prior to the stop? MR. ZALL: happen instantaneously. CHIEF JUSTICE ROBERTS: No. They pull up Yes, I think it would sort of

next to them and they see that Brendlin is the passenger and they yell over: MR. ZALL: Pull over, Brendlin. So they direct their action, they

direct their attention at the passenger at the outset. Yes, then I would say the driver is seized by the stop, and then right immediately the passenger, the reasonable passenger, would not feel free to leave and then he would also be seized at that point. But again, I harken

back to the Court's consensual encounter jurisprudence. It seems to me that again the straight encounter is more 39
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anxiety-forming for the citizen because the police have directed their attention at you. JUSTICE GINSBURG: It may be that you can Suppose the Oh my

walk away, you're not in an enclosed space. passenger knows when the police approaches: goodness, I didn't buckle up.

Would that passenger be

the object of the police authority from the start? MR. ZALL: Well, in your hypothetical,

Justice Ginsburg, the passenger would not be an innocent passenger and the Court's test presupposes an innocent person. So we can't really ask the question from the

perspective of the seatbelt violator. JUSTICE GINSBURG: So it could be, it could

be sometimes the attention is directed at the driver, but that's not always the case. MR. ZALL: Again, I -- as Justice Souter

indicated, I think you have to, you have to break it up. At the outset, the show of authority is by nature of the, of the vehicle, is directed at the driver. After

the vehicle comes to a stop, the police could manifest some interest in the passenger and then that changes things. JUSTICE KENNEDY: But on your earlier answer

to Justice Ginsburg, there's no authority in this Court to say that whether you deem yourself stopped or not 40
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depends on whether think you're innocent. authority for that, right? MR. ZALL: That's correct.

There's zero

JUSTICE KENNEDY: MR. ZALL: correct.

Correct me if I'm wrong. That's

No, that's correct.

The perspective must be -- we must look at it

from the innocent passenger and whether the innocent passenger would as a result merely of the stop of the car feel free to leave. JUSTICE KENNEDY: Going back to Justice

Stevens' question, the passenger knows the minute the red light goes on that the police can either tell them to get out or tell him to stay in. very moment. He knows at that

That seems to me to substantially limit

his freedom of action and indicates that -MR. ZALL: Well, again I think factually

citizens when they encounter police always know -- I mean, the policeman in any encounter is armed, is typically armed, and has apparent authority over you. And yet this Court has repeatedly held that that in and of itself, although it may cause some anxiety on the part of citizen -JUSTICE STEVENS: Yes, but isn't your case

he doesn't in fact have the authority, he has apparent authority, but in this case he has actual authority, not 41
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just apparent authority? MR. ZALL: But Justice Stevens, again I

don't think that the reasonable innocent passenger is -this Court has never said it's the reasonable innocent passenger that knows the Supreme Court's Fourth Amendment jurisprudence by heart. JUSTICE SCALIA: have actual authority. I mean --

You're saying he doesn't

If I understand you, you're

saying he has no authority to stop an innocent passenger from walking away. Aren't you saying that? Unless

there's some reason to hold a person in the car, he has no authority to stop him from walking away. MR. ZALL: of the law. I think that is the current state

Yes, that is the current state of this

Court's jurisprudence. JUSTICE SCALIA: What if I feel, even though

that's the current state of the law, I wouldn't think of opening the door and walking away without asking the policeman, do you mind if I open the door and walk away? Does that suggest that I think I've been seized? MR. ZALL: Scalia. No, I don't think so, Justice

That just suggests that you're prudent when

you're dealing with an armed officer. CHIEF JUSTICE ROBERTS: It's not the police

who have authority over the passenger; it's the driver. 42
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The driver's exercising authority.

Just because the

police say to pull over, the driver can take off and the passenger isn't seized at that point. MR. ZALL: Absolutely, Mr. Chief Justice. I

think again, though, that the stop and then the after the stop are discrete. JUSTICE BREYER: So now perhaps I'm having

so much difficulty, and maybe others are, because you've actually reached a question of law where facts matter. That is, the law points us to the direction of what would a person reasonably think in general in such circumstances, and we can look at five million cases, but we don't know. So what do we do if we don't know? My instinct is he would feel That's

I can follow my instinct.

he wasn't free because the red light's flashing. just one person's instinct. for some studies.

Or I could say, let's look

They could have asked people about Or I could say, well, you're

this, and there are none.

the State of California, you're the ones able to get the studies; you could tell some of those professors, you know, to stop thinking about whatever they're thinking about and go ask a few practical questions, but you didn't. What should I do? Look for more studies? Hold that against you?

Follow my instinct? 43

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MR. ZALL:

I think, Justice Breyer, again I

would keep coming back to the Court's consensual encounter jurisprudence. I think you could ask some of

the same questions about in the Drayton case, in the Bostick case, in the Royer case. But if you accept

those at consensual, then I'm not sure that this is any less consensual here. JUSTICE SCALIA: until the studies are done? (Laughter.) JUSTICE SOUTER: Mr. Zall, assume, and I Maybe we can just pass

realize you don't assume, but assume for the sake of argument, that, that there is a seizure here. What's

the significance of the arrest warrant, or -- yes, I guess there was a warrant as I understand it, although it was not on the person of the officer who stopped the car. Is that correct? MR. ZALL: That's correct. Okay. What's the

JUSTICE SOUTER:

significance of that for the outcome of this case? MR. ZALL: Well, I think that even were this

Court to rule that the passenger were subject to a seizure, that the presence of the arrest warrant attenuates any taint and therefore the evidence was -was not suppressible. 44
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JUSTICE KENNEDY:

Well, maybe our questions

took your colleague representing the Petitioner beyond the question presented. The question presented is only If we agree with the

whether the passenger felt seized.

Petitioner, do we send the case back? MR. ZALL: I wouldn't, I wouldn't think I mean, I

there would be a need to send the case back. think -JUSTICE KENNEDY:

Well, why, if we have

serious doubts whether or not the evidence is suppressible? All we've been asked in the question is,

is whether the passenger is detained. MR. ZALL: I concede that that's true. While the questions

JUSTICE KENNEDY:

indicate that even if the passenger is detained, who cares, it's a lawful arrest. MR. ZALL: Well, I think that because it's

fairly clear that the arrest would, would remove the taint from the seizure, that there would be little reason to send the case back to the California Supreme Court. JUSTICE BREYER: been argued here. MR. ZALL: Well, I think it's subsumed in Well, that question hasn't

the question presented and I think it was raised in our 45
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opposition and the parties have briefed it. CHIEF JUSTICE ROBERTS: Well, but there's --

you know, our Brown case establishes a multifactor test for determining when the illegal seizure has been attenuated and the Court hasn't applied that, the California Supreme Court hasn't gone through that test in this case. MR. ZALL: That is correct, but again I

think because the warrant is such a clear intervening circumstance that has nothing to do, you couldn't in any way say it's an exploitation of the, of the illegal stop. JUSTICE SOUTER: But don't we have two The first one is we

problems if we go to that stage?

would be applying a test that was not applied by the court we're reviewing. And number two, correct me if

I'm wrong, but the, the -- assuming you win, as it were, on the general point about the significance of the, of the arrest warrant, there are still going to be questions about the suppression of the evidence because there are going to be questions about whether the legality of the arrest on that theory suffices to justify the seizure of the evidence. You recall the

colloquy I had with opposing counsel about the possibility of applying a plain view test here. 46
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Aren't those issues that should all be decided in the first instance in the State courts? MR. ZALL: Certainly you could take that But it seems to me that The arrest

position, Justice Souter.

again, that it's relatively straightforward. was valid.

I mean, unquestionably the arrest was valid.

If the arrest was valid, I'm not sure that there are any cases -JUSTICE GINSBURG: But the question that's It's who can

presented is kind of a standing question. complain when the police stop a car? driver.

You say the

The question that's been presented in this case

is, can the passenger also complain, and that's the only thing that we're dealing with. So the -- the arrest

warrant may pose a disqualification for this particular passenger, but that would be a second question. The

question that is tendered to us and that was answered by the California Supreme Court is when the car is stopped by the police who can complain. MR. ZALL: Absolutely, Justice Ginsburg, I

And one further point I'd like to make on that

is, would be to draw a parallel between a parked car situation, in which the lower courts have uniformly held that no seizure results when the police turn on their lights and approach a parked car, and even when they rap 47
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on the window to get the attention of the occupants there is no seizure. CHIEF JUSTICE ROBERTS: passenger or a driver? MR. ZALL: Of anybody. Lower courts have No seizure of a

uniformly held that, and yet that seems to be a more ambiguous situation and a situation in which the occupants' natural reaction would be to turn to each other and say: What's going on here? Whereas again in

the traffic stop I think it's, it is probably the most likely place that a citizen encounters a policeman, much more so than a, an officer approaching me at an airport and saying, can I see your identification, or approaching me on a street corner, or, as in Chesternut, following me as I'm walking home in his squad car. Those seem to me to be more anxiety-creating and yet the Court has held that those are consensual encounters. And in the parked car, there's ambiguity about what the police want, whereas in the routine traffic stop there isn't that ambiguity, so there's no reason why the passenger shouldn't feel free to leave. Now, it might be prudent, as Justice Scalia indicated, to say, I'm leaving. But that doesn't make it a I think you

seizure, that you should act prudently.

should always act prudently when you're dealing with the 48
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police. JUSTICE ALITO: What is this period of time

that we are talking about when Mr. Brendlin might or might not have felt that he was free to leave? As I

understand the facts, the officer recognized him as one of the two Brendlin brothers immediately upon approaching the car. MR. ZALL: Isn't that right. That's -- that right, Your Honor.

But again I think, so I think it's just the mere presence. It would just be from the time that he got

out of his parked, of his car after he parked it, and then with his lights on approached the car and then looks in and sees Mr. Brendlin. So that's the period of

time that Petitioner would have to establish that a reasonable person would not feel free to leave. And the -- and the comparison with the parked car and the other consensual encounter cases of this Court in my view indicate that there is nothing that's been done to the passenger. I mean, the arrest

of one person as this Court said in Drayton does not mean that everyone around him is detained so it doesn't seem to the State that anything has been done to the passenger. He just was unlucky enough to be in this car

when the driver was stopped for a traffic violation. And that seems to me fairly unambiguous and we don't 49
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feel like a reasonable passenger would not feel free to leave in that situation. JUSTICE KENNEDY: Well, it may be that we

would say because of the exclusionary rule dynamic, we have very little interest in applying the exclusionary rule to this but I'm not so sure that we should bend the concept of seizure and say that the passenger hasn't been seized. Perhaps we should be very liberal insofar as applying the exclusionary rule and in this case it seems to me there is lawful arrest which is intervening cause anyway. But I don't know that we should distort the law

of seizure. MR. ZALL: Justice Kennedy, I wouldn't think

you're distorting the law of seizure by saying the passenger isn't seized. passenger. Nothing is done to the

He happens to be in this stopped vehicle,

but the police have directed no action toward him and so I'm not sure that you would be torturing the definition at all. JUSTICE STEVENS: Suppose 10 or 20 years ago

we had this case and we decided your way and decided passengers are not seized, and then subsequently we had the question of whether an officer could order a passenger out of the car. What would be held then? 50
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Would we have said we can't because he is not seized? Or would you say yes, he was seized. I meant if we

decided in your case there is no seizure, would we then have later on, do you think said, notwithstanding the absence of a seizure the officer could order the person out of the car? MR. ZALL: Yeah. Because I think -- because

I think the weighty interest in officer safety would still allow the officer to have some degree of control over the situation. seized. But again seizable does not mean

The fact that the officer could seize the

passenger doesn't mean that the passenger is seized. JUSTICE STEVENS: But in most situations

where an officer meets a person, unless there is a crime scene or something like that, he can't order them to cross the street or go someplace else, can he? issue any order to a citizen. MR. ZALL: But again -But he can issue orders to He can't

JUSTICE STEVENS:

passengers even though they are not seized. MR. ZALL: But Justice Stevens, I think

that's because of, the Court recognized in Mimms and in Wilson that there is something inherently dangerous about the traffic stop situation, and there may be weapons in the car that the officer can't see, and so 51
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that's why this Court found in Wilson that you could order the -JUSTICE KENNEDY: there was a blanket rule. have a specific reason. Yes, but in that case

The officer didn't have to And that it seems to me

indicates that that's because the person as a general rule knows that he or she is seized. If the officer had

to give a specific reason requiring the person to stand outside as the dissent said, then you might have had a point. But I don't think that's what the Court held. MR. ZALL: I don't think, Justice Kennedy,

that the Court ever indicated that the passenger was seized in Wilson prior to the order out. I know there

was a dissent that indicated that the passenger wasn't seized and the majority never indicated that they disagreed with that point. I think that what happened

in Wilson is that the Court just felt that -- may I -CHIEF JUSTICE ROBERTS: sentence. Sure. MR. ZALL: -- the Court just felt that the Finish your

weighty interest in officer safety justified the order out, regardless of whether the passenger was seized at the outset. CHIEF JUSTICE ROBERTS: Thank you Counsel.

Miss Campbell, you have five minutes 52
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remaining. REBUTTAL ARGUMENT OF ELIZABETH M. CAMPBELL, ON BEHALF OF PETITIONER MS. CAMPBELL: Thank you. Just to respond

to that last question very briefly, I agree with Justice Kennedy that Wilson could not have been decided the way that it was decided had there not been an underlying assumption that the passenger is seized, because Wilson does not require any reasonable suspicion that the person is posing a danger to the driver. I'd also like to respond to the State's argument that the passenger in this case simply got unlucky and he was in a car with someone, that he happened to be in a car with someone who was stopped for a traffic offense. This passenger wasn't merely

unlucky; his Fourth Amendment rights were violated by an unreasonable stop that was unreasonable from its inception. Not only did the officer have no reason to

make the stop; he had actually called in and verified and gotten affirmative evidence confirming that there was no reason for the stop. So it -So that -- so that,

CHIEF JUSTICE ROBERTS:

still then, it's just begging the question of whether or not his Fourth Amendment rights were violated. You're

making a good case that the driver's Fourth Amendment 53
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rights were violated, but why isn't the passenger, as your friend said, just in the unlucky circumstance to have been in a car whose the driver's Fourth Amendment rights were violated? MS. CAMPBELL: Because Your Honor, this

Court has -- this Court held in Delaware versus Prouse, the Court recognized the passengers as well as drivers have a liberty interest in free travel on the highways, and because if we look at every case this Court has decided in the last 20 or 30 years regarding when a seizure occurs, the case of a passenger in an auto test -- in an auto stop meets the test. Under Hodari D we

need a show of authority or physical control; in this case we have both. We have the driver response to the

officer's show of authority and as a result the passenger is, is subject to physical control, as a direct line. JUSTICE SCALIA: What have we done in a

case, and maybe we haven't had it, but what have we done in a case where there is a warrantless entry in violation of the Fourth Amendment of somebody's apartment, and there is a suitcase in there that does not belong to the owner of the apartment? My impression

is that, that the owner of that suitcase has not been subjected to an unreasonable search and seizure; is that 54
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correct? MS. CAMPBELL: If the person has no

expectation of privacy in that suitcase that is correct, Your Honor. But this Court has recognized in Delaware

vs. Prouse that a passenger does have a privacy liberty interest in free travel. So it's a different situation.

Once again, going back to the Brower case, the, there was some question about whether or not the, the seizure of a bystander would be, would be a seizure under the rule proposed by, by Petitioner in this case. Brower talks about an entirely accidental seizure. JUSTICE KENNEDY: Well, but there was only

one, there was just the driver in the Brower case. MS. CAMPBELL: Yes, Your Honor. There was no passenger as

JUSTICE KENNEDY: I recall. MS. CAMPBELL: No.

But - but under the rule

proposed by the State if there had been a passenger that passenger would not have been seized. how this Court -JUSTICE KENNEDY: Well, but I mean in the That's what we But if we look at

case it's just not directly on point. are arguing about. MS. CAMPBELL:

Yes, Your Honor.

But if we

look at the case next in line case, the County of 55
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Sacramento versus Lewis case, there was a passenger in that case who was struck by the officer in the pursuit, and although the Court found no seizure it didn't base that on the fact that the person was a passenger, but on the fact that it was an accidental application of force. JUSTICE KENNEDY: case that doesn't help us. MS. CAMPBELL: the discussion, Your Honor. JUSTICE GINSBURG: But what of the question I think it certainly informs So that's just another

that was raised about well, a passenger is locked in for the moment, but so are all the cars that are backed up behind the car that's been stopped? difference between the passenger -MS. CAMPBELL: In that case, Your Honor, What's the

there hasn't been an intentional impeding of those people's free, free movement by the officer. The And I

officer has intentionally stopped this vehicle.

-- I don't think it's really, it's really far-fetched to argue that it's reasonably foreseeable that automobiles often have passengers in them, and there is certainly a large body of statutory law at least in California that shows that the car can be stopped for reasons related to the passenger. So it's, it's a different situation. 56
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not looking at an accidental seizure. an intentional seizure of the car.

We are looking at

Just to address for a moment whether or not remand is appropriate in this case, just to clarify the procedural posture. The intermediate appellate court in

California did rule this, that the evidence seized in this case was the fruit of the poisonous tree and should be suppressed. The California Supreme Court did not

grant review on that issue and it was not, it's not included in the question presented. clarification. But if the -The California Just for

CHIEF JUSTICE ROBERTS:

Supreme Court didn't have to reach that issue because it found there was no seizure. MS. CAMPBELL: No. The court did not -- did

not actually request briefing on the issue either. Thank you. CHIEF JUSTICE ROBERTS: The case is submitted. (Whereupon, at 12:04 p.m., the case in the above-titled matter was submitted.) Thank you, Counsel.

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applied 4:3,15 10:16 17:10 22:10,19 25:12 46:5,15 applies 10:15 apply 3:20 4:9 5:13 10:10 applying 46:15 46:25 50:5,10 approach 35:8 35:21 47:25 approached 5:24 49:12 approaches 35:2 40:5 approaching 20:21 48:12,14 49:7 appropriate 57:4 April 1:9 argue 56:20 argued 45:23 arguing 13:19 55:23 argument 1:12 2:2,5,8 3:3,6 15:9 23:23 28:1 29:21 44:13 53:2,12 armed 41:18,19 42:23 arrest 6:18,19 6:20,22,22 7:3 7:3,9,12,13,17 8:2,5,8,14,16 8:18,25,25 9:1 9:2,7,9,10,14 9:24 10:5,24 10:25 11:17,22 11:22,23,24 12:10,13,15 14:3,6,16,23 14:24,25 15:5 28:21 38:19 44:14,23 45:16 45:18 46:19,22

47:5,6,7,14 49:19 50:11 arrested 8:19 9:17,22 10:7 12:6 34:10 37:10 38:18 arresting 13:13 arrived 26:16 ascertain 26:8 asked 34:1 43:17 45:11 asking 42:18 asks 3:14 27:17 assume 4:19 12:1 30:14 44:11,12,12 assumed 7:8 assumes 19:12 19:13 24:15 assuming 46:17 assumption 53:8 attention 39:19 40:2,14 48:1 attenuate 15:22 attenuated 15:4 15:24 46:5 attenuates 44:24 attenuating 13:23 attenuation 13:18 Attorney 1:17 authorities 18:6 authority 7:12 8:11 9:20 10:1 14:3 16:19 20:9 28:12,15 28:22 29:3 35:3,4 36:8,10 36:11,16,16,19 36:20,24,24 37:3,6 38:7,8 38:13,16,19,21 40:7,18,24 41:2,19,24,25 41:25 42:1,8,9 42:12,25 43:1

54:13,15 auto 8:22 54:11 54:12 automobiles 56:20 aware 7:11 8:17 24:25 ax 9:5 a.m 1:13 3:2 B B 13:12 33:9 back 7:18 12:6 15:1 17:16 27:16 28:20 31:16 32:4,8 36:1,17 39:24 41:10 44:2 45:5,7,20 55:7 backed 56:12 bad 27:9 bag 26:5,6,8 27:2,3,4 bars 12:7 base 56:3 basket 14:14,15 17:24 bear 14:7 begging 53:23 begins 5:8 behalf 1:15,18 2:4,7,10 3:7 28:2 53:3 behavior 34:6 believe 4:3,24 4:24 5:13 11:9 12:18 believed 19:9 belong 54:23 Belton 14:24 bench 33:8 bend 50:6 benefit 11:1 best 7:14 beyond 45:2 bit 8:9 14:25 18:12

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blanket 52:4 blending 18:17 21:8 blood 30:10 Board 13:3 boats 33:21 body 56:22 Bostick 26:13 38:4 44:5 break 40:17 Brendlin 1:3 3:4 6:8,10 8:17 14:23 15:1,4 39:16,17 49:3 49:6,13 Breyer 15:25 16:15,18,25 17:3,7,13 22:11 23:12 33:18 35:11,14 37:13 38:1 43:7 44:1 45:22 brief 6:4 21:23 24:2 33:14 briefed 46:1 briefing 57:16 briefly 53:5 bright 20:7 brothers 49:6 brought 11:15 Brower 4:16 16:23,25 17:1 17:5 22:5,5 23:2 26:21 55:7,11,13 Brown 13:16 14:2,3 46:3 BRUCE 1:3 buckle 40:6 burden 13:17 bus 4:10,11,12 4:18,21 5:4 bystander 55:9 C C 2:1 3:1

cab 3:20,22,23 3:25 26:17 Cal 1:15,18 California 1:6 3:4 12:20,21 15:25 32:25 33:2,15,16 43:19 45:20 46:6 47:18 56:22 57:6,8 57:12 call 12:20 called 53:19 Campbell 1:15 2:3,9 3:5,6,8 3:24 4:11,14 4:23 5:9,12,21 6:1,9,14,19,24 6:25 7:4,16,20 7:24 8:15 9:8 9:12,23 10:3,8 11:9 12:17 13:1,3,6,15 14:17 15:11,15 15:18 16:13,16 16:23 17:1,5,8 17:19 18:3,8 18:14,21 19:16 20:2,5,16,18 20:24 21:5,9 21:12 22:4 23:4,25 24:16 24:22 25:10,20 26:11,19 27:8 52:25 53:2,4 54:5 55:2,14 55:17,24 56:8 56:15 57:15 car 3:12,12,13 4:1,8 5:4,24 8:5 9:5,7,18 10:18 11:7 13:12,14 14:23 15:1,22,22 16:7,9,11,16 17:8,11,12,17 17:21,24 18:2

20:7,13,21,22 21:4,16,24 22:1 23:17,20 24:2,3,10,17 25:22 28:18,21 31:2,3,10,11 31:12,13,16,18 31:20,24 32:6 32:10,17,19 33:24 34:2,9 34:10,12,20,20 35:10 36:3,8 36:17 37:19 39:2 41:9 42:11 44:17 47:11,18,22,25 48:15,18 49:7 49:11,12,17,23 50:25 51:6,25 53:13,14 54:3 56:13,23 57:2 care 34:9 cares 45:16 cars 21:25 25:7 56:12 case 4:7,19 5:4 5:22 6:14 7:1,5 7:15 8:4 9:17 10:5,6 12:9 13:19,23 14:5 14:18,20,25 19:19 23:6 24:5,13,21 33:19,22 37:9 40:15 41:23,25 44:4,5,5,20 45:5,7,20 46:3 46:7 47:12 50:10,22 51:3 52:3 53:12,25 54:9,11,14,19 54:20 55:7,10 55:13,22,25,25 56:1,2,7,15 57:4,7,19,20 cases 7:17,25 8:2 14:1 16:4

18:23 19:2 25:6,8 29:12 29:12,14 30:23 43:12 47:8 49:17 casting 12:10 casual 36:14 catch 3:22,25 18:25 26:17 category 19:2 cause 8:13 14:22 25:19 27:7 36:8 41:21 50:11 caused 22:13,15 certainly 19:5 24:1 31:13 37:1 47:3 56:8 56:21 changes 40:21 charge 10:6 checks 14:22 Chesternut 48:14 Chief 3:3,8,19 4:17 21:3 24:9 24:19 25:4 27:24 28:3 32:3,11,15 38:25 39:3,10 39:15 42:24 43:4 46:2 48:3 52:18,24 53:22 57:12,18 choice 11:14,16 12:2,4,8 choices 12:1 circumstance 13:23 46:10 54:2 circumstances 4:5 14:7 17:20 18:15 20:14,25 27:14 43:12 cited 23:2 33:13 citizen 35:2,8 38:18 40:1

41:22 48:11 51:17 citizens 41:17 clarification 57:11 clarify 57:4 clear 5:16 21:18 38:23 39:7,11 45:18 46:9 clearer 35:23 client 12:4 CLIFFORD 1:17 2:6 28:1 closest 7:14 Code 12:21 coercion 35:18 colleague 45:2 colloquy 46:24 come 17:12 24:11 comes 4:1 8:21 16:7 20:8 24:2 24:18 32:5 40:20 coming 44:2 committed 25:17 common 30:22 commonplace 29:25 comparable 14:3 comparison 49:16 compatriot 37:10 complain 47:11 47:13,19 complete 17:12 17:25 components 28:7 concede 6:18,21 6:24 11:20 29:15 45:13 conceded 10:23 12:25 38:8

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countermandi... 33:4 County 55:25 course 6:15 21:17 court 1:1,12 3:9 3:14 7:25 8:4 16:1,20 19:21 20:25 23:9 27:17 28:4 33:7 35:7 37:11 40:24 41:20 42:4 44:22 45:21 46:5,6,16 47:18 48:17 49:18,20 51:22 52:1,10,12,17 52:20 54:6,6,7 54:9 55:4,20 56:3 57:5,8,13 57:15 courts 47:2,23 48:5 Court's 3:16 4:16 15:23 19:18 28:15 34:25 38:2,3 39:24 40:10 42:5,15 44:2 cover 11:5 crashed 17:8 creeping 17:13 crime 51:14 cross 51:16 crucial 17:9,9 18:1 current 42:13 42:14,17 curtailed 5:2 custody 9:15 37:7 D D 3:1 18:24 28:12 54:12 danger 53:10

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Alderson Reporting Company